Under EU legislation, Member States must ensure a legal review procedure for decisions taken in the context of the Environmental Impact Assessment Directive and the Industrial Emissions Directive. The European Commission is concerned at apparent gaps in German legislation in this area, which may be restricting citizens' access to justice. On the recommendation of Environment Commissioner Janez Potočnik, the Commission is therefore taking Germany to the EU Court of Justice.

 

In November 2012, Germany amended its Act on Legal Redress in Environmental Law in an effort to comply with a recent ECJ judgement on the question of legal standing, i.e. who exactly can go to court on behalf of the environment. While the new legislation clearly resolves some of the previous issues, the Commission is concerned at shortcomings that remain.

 

Under the amended legislation, procedures which started after 25 June 2005 and were completed before 12 May 2011 are not covered by the revised law, and neither are procedures which were initiated before the implementation deadline of 25 June 2005 and were still on-going after that date. The Commission believes that these exclusions could significantly delay the application of the rules on access to justice.

 

Other concerns include, for example, the arguments that may be referred to when a case reaches the court. Under German law, if an applicant has already raised certain concerns during an administrative procedure, the court may only consider those arguments, and must ignore any new arguments that may have subsequently emerged. German courts also require applicants to prove that the result of an Environmental Impact Assessment would have been different without the procedural error they claim, effectively transferring the burden of proof to a member of the public, in contradiction to the principles of the Directive.